Estate Planning

Probate Litigation

Hackleman, Olive & Judd represents heirs, beneficiaries, personal representatives, trustees and other interested parties in complex probate-related disputes. We are sensitive to the emotional and often-trying aspects of facing a legal dispute after a loved one’s passing, and we work with our clients to pursue favorable outcomes as efficiently and, when appropriate, amicably as possible.

The attorneys in our estate planning practice have significant experience in a broad range of estate litigation matters, including will contests, trust contests, creditor disputes and tax issues. If a conflict or disagreement over a will or trust arises, our attorneys will first seek to resolve the matter outside of the litigation process. However, while negotiation, mediation and other forms of alternative dispute resolution (ADR) can successfully resolve many of types of probate-related disputes, certain matters will require litigation in court. In these situations, our lawyers advocate on behalf of our clients through trial and appeals, if applicable.

Common Issues in Probate Litigation

There are numerous issues that can lead to contentious disputes during the probate process. Some of the most common issues in probate and trust litigation include:

Enforceability of a Will, Trust or Other Estate Planning Document

Oftentimes, family members and other interested parties will have reason to dispute the enforceability of the decedent’s will. Questions of enforceability can arise due to a wide range of factors, including questions regarding the decedent’s legal capacity and the assertion of undue influence at the time of the will’s execution. In addition, Florida law imposes certain requirements for a will to be valid, and in some cases failure to adhere to these requirements can lead to probate disputes as well.

Interpretation of the Decedent’s Estate Plan

Assuming that a will or trust is legally enforceable, questions may also arise regarding its interpretation. Wills and trusts are complex legal documents that will often exist for years, if not decades, before they become relevant, and changes in the law or in the decedent’s family or financial circumstances can lead to ambiguities that require resolution. In other cases, the terms of the document may simply be unclear, and the decedent’s potential heirs and beneficiaries will need to use the dispute resolution process (either ADR or litigation) to determine how the decedent’s estate plan should be interpreted.

Inconsistencies Among Estate Planning Documents

Inconsistencies among estate planning documents can lead to questions of interpretation as well. Inconsistencies between wills and trusts can arise when different estate planning documents are prepared over time, or when inadequate care is exercised to ensure that a person’s estate plan works as intended. When different estate planning documents give competing rights to beneficiaries or other interested parties, a careful legal analysis will be required to determine which document (or documents) should control.

Creditors’ Rights in Probate

As a general rule, a decedent’s creditors are entitled to have their debts satisfied before any assets are distributed to the decedent’s heirs or beneficiaries. However, there are strict timelines and notice requirements that apply, and creditors’ rights are not always necessarily as straightforward as they may seem. Personal representatives must take care to meet their obligations to the estate’s creditors without unnecessarily jeopardizing the assets of the estate, and it is not uncommon for creditors and family members to both seek to protect their financial interests through probate litigation.

Estate and Trust Administration Disputes

Personal representatives and trustees owe several legal duties during probate and trust administration, and failure to meet these duties can often lead to contentious litigation. From incurring unnecessary costs and expenses to making mistakes with regard to providing notice or payment to creditors, personal representatives’ and trustees’ errors during the estate administration process are routinely at the center of probate and non-probate disputes.

Breach of Fiduciary Duty

One specific type of claim in estate administration litigation is a claim for breach of fiduciary duty. Personal representatives and trustees owe “fiduciary duties” to the estate which, broadly speaking, means that they must always act with the estate’s best interests in mind. Allegations of fraud, mismanagement, waste, negligence and misappropriation are all common issues that can expose personal representatives and trustees to personal liability in breach-of-fiduciary-duty litigation.

Failure to Provide a Complete Inventory or Accounting

Another important duty owed by personal representatives and trustees is the duty to prove a complete and accurate inventory or accounting of the estate’s assets. Failure to provide an inventory or accounting, failure to include all relevant assets in the reporting of the estate’s holdings, and inclusion of assets that should not be included (i.e. including trust assets in the decedent’s probate estate) are all mistakes that will commonly lead to disputes.

Who We Represent

At Hackleman, Olive & Judd, we serve clients who need help enforcing their legal rights or ensuring that their loved one’s final wishes are carried through. Our clients include:

Heirs – An heir is a family member who is entitled to a share of a person’s estate under Florida’s law of intestate succession. This means that he or she is entitled to a share of the estate in the absence of an estate plan. If a legally-enforceable estate plan exists, the estate plan will control over the law of intestate succession.

Beneficiaries – A beneficiary is an individual or entity (such as a charitable organization) that has been named as the recipient of all or a portion of a decedent’s estate in his or her estate plan. Beneficiary rights can be established through a will, trust, insurance contract, retirement account, payable-on-death (POD) bank account, or other estate planning tool.

Personal Representatives – A personal representative is the person (or company) tasked with administering a decedent’s probate estate. A personal representative may be named in the decedent’s will; or, if necessary, one will be appointed by the court.

Trustees – A trustee is the person (or company) appointed to administer the terms of a revocable or irrevocable trust. The trustee will be named in the trust origination documents and must generally administer the trust in accordance with the terms specified in the documents.

Other Interested Parties – We also represent other individuals and entities who have a possible financial interest in probate litigation. This includes individuals and entities that claim to be entitled to a share of the estate, trust protectors, and those seeking to be appointed as (or challenge the appointment of) a personal representative.

Probate Litigation FAQs

Q: What is probate?

Probate is the legal process used to pay a person’s debts and distribute his or her remaining assets to heirs and beneficiaries after death. But, it is important to note that not all of a person’s assets will necessarily be subject to probate. Trusts, POD accounts, and other non-probate transfers can all be used to distribute a person’s assets outside of probate.

In Florida, there are three primary types of probate: formal administration, summary administration, and disposition of personal property without administration.

Q: What if my loved one died without an estate plan?

If your loved one died without an estate plan, this means (i) you will need the court to appoint a personal representative, and (ii) your loved one’s assets will be distributed (after payment of creditors) according to Florida’s law of intestate succession. Florida’s intestate succession law specifies which heirs are entitled to a share of a decedent’s estate, but it does not specify which assets should be distributed to different heirs. As a result, it is not uncommon for heirs to end up in property-related disputes during the probate administration process.

Q: What if there are multiple versions of my loved one’s estate plan?

If there are multiple versions of your loved one’s estate plan, you will need to figure out which version controls. While it could be (and perhaps is most likely to be) the most-recent version, there are a variety of circumstances under which this will not necessarily be the case. For example, the most-recent version may be unenforceable due to lack of testamentary capacity or undue influence; or, it may be that documents executed at different times will govern different portions of your loved one’s estate.

Q: What if my loved one’s estate plan includes a will and a trust (or multiple trusts)?

It is fairly common for a comprehensive estate plan to include multiple planning documents, including a will and one or more different types of trusts. If your loved one’s estate plan includes a will and a trust, you will need to determine which of his or her assets are subject to probate, and which are actually assets of the trust. This task is typically performed by the decedent’s named personal representative and trustee; although, as we mentioned above, disputes over inventories and accountings are common triggers for probate litigation.

Q: What is a codicil?

A codicil is an amendment or supplement to a will. In Florida, codicils are subject to the same enforceability requirements as wills, including testamentary capacity, lack of undue influence, and execution in front of two witnesses.

Q: Who can challenge a decedent’s will in Florida?

Anyone who has an interest in the distribution of a person’s estate can potentially challenge his or her will in probate litigation. However, in order to challenge a will, you must have sufficient legal grounds to do so – it is not enough simply to be dissatisfied with the legitimate and legally-enforceable terms of the will. Deciding whether to challenge a will requires assessment of a variety of legal, financial and practical considerations, and is something to be done with the advice and guidance of an experienced attorney.

Q: What is the statute of limitations for challenging a will in Florida?

Once you receive a Notice of Administration from the probate court, you only have 90 days to file a challenge to the decedent’s will. If you fail to timely file an objection with the court, you will likely lose your ability to challenge the will. Florida law allows for an extension of this time period for only one reason: “a misstatement by the personal representative regarding the time period within which an objection must be filed.” The law goes on to state that, “[t]he time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person.”

Q: How can someone prove that a will was executed without testamentary capacity or under undue influence?

Proving that a will was executed without testamentary capacity or under undue influence can be challenging. Often, the person seeking to challenge the will must rely on circumstantial evidence – evidence of events preceding the date of execution which suggest that the testator (the person who created the will) either lacked sufficient mental capacity or was in a position to be influenced into making decisions he or she would not have made independently.

However, each case is unique, and depending on the circumstances involved there could be clear evidence that your loved one’s will should not be enforced. If you are concerned that your loved one’s will may not reflect his or her final wishes, we can help you determine if you have grounds challenge the will.

Q: Can I file an appeal if I am dissatisfied with the outcome of the probate process?

Potentially, yes. There are various grounds on which the outcome of probate litigation can be appealed; and, once again, you will need to determine if filing an appeal is both (i) an option, and (ii) in your best interests in light of the unique facts and circumstances at hand. Our attorneys represent clients in probate appeals in Florida, and we can help you decide whether to appeal the outcome of your probate litigation.

Q: Can I represent myself in probate or trust litigation in Florida?

Technically, yes. As an individual, you have the right to represent yourself before the probate court. However, due to the complicated legal and factual issues involved in probate disputes, and due to the fact that you likely have a significant financial stake in the outcome of the litigation, it will strongly be in your best interests to seek experienced legal representation. This is true whether you are an heir or beneficiary seeking to enforce your rights, a personal representative seeking to avoid liability for an alleged breach of fiduciary duty, or another interested party seeking to enforce or challenge the terms of the decedent’s estate plan.

Experienced Probate Litigation Attorneys in Fort Lauderdale, FL

Probate litigation is complex, and it is best handled by an experienced Fort Lauderdale probate litigation lawyer. Our probate litigation team is comprised of skilled trial attorneys who have an in-depth understanding of the complex laws and legal procedures governing estates and trusts. We draw upon this knowledge to investigate probate-related disputes so that we can build the strongest case possible. We know that our clients are at a difficult juncture in their lives, and we are committed to doing everything possible to protect their rights and achieve a positive outcome. Do you have questions about your rights or obligations in probate? If so, we encourage you to contact us for a confidential consultation.

With offices in Fort Lauderdale, Hackleman, Olive & Judd represents clients in probate litigation throughout Florida. If you have questions, you owe it to yourself and your loved ones to learn more about your situation. To speak with one of our experienced probate litigation attorneys in confidence, please call (954) 334-2250 or request an appointment online today.